COMMONWEALTH of Pennsylvania, Appellee, v. James J. COLEMAN, Appellant
Supreme Court of Pennsylvania
Decided Nov. 18, 1978
394 A.2d 474 | 482 Pa. 581
Submitted Oct. 16, 1978.
Appellant raises two other issues:
- Was he denied the right to communicate with his family at the time of his first post-conviction petition and, therefore, was denied the counsel of his choice?
- Did the court below err in treating the third post-conviction petition as post-verdict motions for a new trial and in arrest of judgment and in disposing of such motions contrary to
12 P.S. § 1032 ?
We have reviewed the above issues and have determined that they are meritless.
Order affirmed.
William H. Platt, Dist. Atty., Raymond G. Kessler, James B. Martin, Asst. Dist. Attys., Allentown, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
OPINION
LARSEN, Justice.
In 1971, appellant was convicted of murder in the second degree in connection with the stabbing death of his girlfriend. Motiоns for new trial and in arrest of judgment were denied. He was sentenced to ten to twenty years’ imprisonment. On appeal, judgment of sentence was affirmed by this Court.1 Subsequently, appellant filed a petition under the Post Conviction Hеaring Act requesting a new trial and/or release from custody and discharge. The lower court dismissed the petition and this appeal resulted.
Appellant presents three issues for review: whether the trial court erred in its instructions to the jury regarding the use of intoxication evidence to negate elements of the crime; whether the court abused its discretion by admitting into evidence certain photographs of the victim and of the scene of the crime; and whether appellant was denied effective assistance of counsel.
Appellant next argues that it was error for the court to admit into evidence photographs of the victim and of the scene of the crime. Having failed to raise this question on direct appeal, appellant has waived the issue. Act of January 25, 1966, P.L. (1965) 1580 [
The final question is whether appellant was denied effective assistance of counsel. We stated in Commonwealth ex rel. Washington v. Maroney, “counsel‘s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client‘s interests“. 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). We find that appellant received effective assistance of counsel.
Appellant‘s first two claims hereunder allege that his attorneys (two public defenders) were ineffective because they failed to appeal the jury charge on intoxication (discussed prior), and failed to object to the photographic exhibits. Since the state of the law at the time of trial clearly supported the jury charge on the use of intoxication evidence, it would have been frivolous for counsel to apрeal this matter. The record clearly shows that counsel did object to introduction of the photos. Hence, these ineffective assistance claims are without merit.
The third claim of ineffective assistance cоncerns counsel‘s failure to appeal the lower court‘s denial of a motion to suppress evidentiary use of oral statements made to the police by appellant at the time of his arrest. At the post-сonviction hearing, appellant‘s former counsel testified that he had considered the issue waived because appellant, in taking the witness stand, had testified as to the state-
The final aspect of the ineffectiveness issue involves the failure of counsel to inform appellant of his alleged right to have a court-appointed counsel other than a member of the public defender‘s staff. There is no such right. While an indigent is entitled to court-appointed counsel at no cost, he cannot insist upon a counsel other than the public defender. Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968). Furthermore, the court will not grant a motion for change of counsel except for substantial reasons.
Order affirmed.
NIX, J., filed a concurring opinion in which POMEROY, J., joined.
ROBERTS and MANDERINO, JJ., concurred in the result.
NIX, Justice, concurring.
Appellant in this collateral proceeding under the Post Conviction Hearing Act,
The majority states that “this issue was not waived because appеllant is arguing for retroactive application of subsequent law.” (p. 589, n.2.) However, a waiver is not avoided simply because a party argues that the issue has not been waived, rather it must be established that the claim of no waiver is in fаct sustainable. In this case it clearly was not. The claim that the argument rests upon a new principle of law, not recognized at the time of the direct appeal in this case, assumes that our decision in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975) changed thе law in the area of felonious homicide. This assumption is incorrect. In Graves, we reiterated the prior law that where the charge was felonious homicide, evidence of voluntary intoxication may be introduced to negate the presence of a specific intent to kill. See Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947); Commonwealth v. McCausland, 348 Pa. 275, 35 A.2d 70 (1944). At no point in our Graves decision was it suggested, either expressly or implicitly, that voluntary intoxication, by itself, was sufficient to lower a homicide to voluntary manslaughter. In analyzing the casеs relating to the effect of intoxication in homicide cases, we stated in Graves:
“These decisions were primarily addressed to the problem of whether evidence of intoxication should be permitted to reduce the сharge to voluntary manslaughter. Each of these cases, faced with the issue, recognized that intoxica-
tion was not a basis for excuse or mitigation but was germane to the issue of the existence of premeditation аnd deliberation. While it is true that they concluded that the evidence was not to be used to reduce the crime to voluntary manslaughter, and concededly in some instances mention a distinction between a lesser degree and another grade of crime, a careful reading of these cases indicates that the crucial consideration for their conclusion was that the fact of intoxication was irrelevant to the question of the absence or presence of legal provocation and passion. See Commonwealth v. Ingram, supra. We agree that to incorporate one‘s state of sobriety into the test of sufficient provocation would be complеtely improper. To follow this approach would be tantamount to accepting intoxication as a mitigating factor.” (emphasis added; footnote omitted)
Commonwealth v. Graves, supra, 461 Pa. at 125, 334 A.2d at 664-65.
See also Commonwealth v. England, 474 Pa. 1, 19-20, 375 A.2d 1292 (1977).
With the determination that the contention of appellant was available on direct appeal, it is obvious that the question was not preserved for review and should not be considered further by this Court.2 To the contrary, the majority has elected to raise questions (without deсiding) as to the continued vitality of Graves and the extent of its retroactive application. In my judgment this approach is unwarranted and jurisprudentially unsound.
I would affirm the ruling of the Post Conviction Hearing Court on this issue on the basis that the issue had been waived.
POMEROY, J., joins this concurring opinion.